Objective coverage of church-state and religious liberty developments, with extensive links to primary sources.
Tuesday, July 10, 2007
$1 Damages to Cobb County Prayer Plaintiffs
The court has issued its decision on relief owed the plaintiffs. As said, the Court had previously upheld the Board of Commissioners' process for selecting speakers which involved inviting clergy from a master list compiled using the Yellow Pages. The Planning Commission also used the Yellow Pages, but its set of Yellow Pages "contained cross-out markings through the contact information of Islamic, Jehovah’s Witness, Jewish, and Latter Day Saint churches. Leaders of those faiths were categorically excluded from the pool of invitees in 2003 and 2004." Pelphrey v. Cobb County, No. 1:05-cv-2075, slip op. at 4 (ND Ga. July 7, 2007).
The court concluded that the Plaintiffs were entitled to a declaration that the 2003-2004 practice was unconstitutional, that they are entitled to compensatory damages of $1, and that they are not entitled to injunctive relief. Id. at 21-22. The court concluded that no injunctive relief was appropriate because, given that the practice had stopped in 2005, "an injunction would not operate to redress the unconstitutional conduct." Id. at 21. It concluded that nominal damages were appropriate where, as here, a plaintiff established the violation of an “absolute”constitutional right—such as the right to be free from a state establishment of religion—but cannot prove actual injury. Id at 17 - 18.
A story detailing this award can be found here in the Daily Report (Fulton County, GA).
Preacher's Failure to Follow Campus Rules Not Sufficient for Trespass
The Court determined that under NY Law, the People were required to demonstrate that the particular order to exclude Davis had a legitimate basis and that, considering the nature and use of the subject property, its enforcement did not unlawfully inhibit or circumscribe the defendant from engaging in constitutionally or statutorily protected conduct. After establishing that that the campus was "open to the public," the Court ruled the People had not met their burden:
[t]he Court finds that the People offered insufficient evidence to demonstrate that the . . . order to the defendant to leave the SCCC campus had a legitimate purpose, rationally related to the power to maintain order on the campus, or that its enforcement did not violate an independent right of the defendant.Therefore, the Court finds this defendant not guilty of the charge of Trespass . . .
Thanks to ADF for the lead.
Monday, July 09, 2007
Slidell: Complaint and Motion for Preliminary Injunction
11. The lobby contains two paintings. One is a painting of the founding judge of the City Court of Slidell and is accompanied by wording to that effect. The other, placed on a separate wall, is a religious icon of the Eastern Orthodox sect of Christianity. It shows an image of Jesus Christ presenting the New Testament. The icon is positioned above the large gold wording, "TO KNOW PEACE, OBEY THESE LAWS." The display in question is the Eastern Orthodox religious icon combined with the wording below it.
12. The display is prominently displayed in the center of the wall directly above the teller window of the City Court of Slidell.
14. Prior to June of2007, in order to participate fully as citizens, to conduct business, or to fulfill certain legal obligations, Plaintiffs, John Doe and members of the American Civil Liberties Union of Louisiana, separately entered the City Court of Slidell, saw the display, and were offended by it as a whole and in its several parts. In order to participate fully as citizens, conduct business, or fulfill certain legal obligations, Plaintiffs will be obligated to return to the courthouse in the future.17. On information and belief, Defendants installed the display, which had never
before been displayed on public property, before the courthouse opened in 1997 and have maintained it at taxpayer expense since that time.
Thanks to the First Amendment Center for the lead to the online documents.
The Legacy of Zelman v Harris-Simmons
From Cleveland Heights to Akron, the population shift from older neighborhoods could lead to the closing, merger or consolidation of about one-sixth of the schools in the eight-county Cleveland Catholic Diocese. But Catholic schools in Cleveland proper have a guardian angel: Ohio taxpayers, who provided more than $16 million in tuition vouchers for more than 5,500 city children to attend parochial schools this past school year.
The paper also notes that the program enjoys bi-partisan support. Voucher opponents claims that the program drains resources from other public school activities.
The Legacy of Rosenberger v. University of Virginia
More than a decade later, some public universities still have policies that appear to run counter to the spirit and letter of [Rosenberger]. In fact, a review of more than a dozen student handbooks across the country reveals a confusing and contradictory mishmash. Some policies explicitly welcome religious groups to apply for student-activity funds and inveigh against any "viewpoint discrimination." Others prohibit religious groups from receiving any money. Still others are so vague that it's unclear who is and is not eligible for support.
As a consequence, there is litigation involving schools that are allegedly engaging in viewpoint discrimination. See for example a prior posting (here) discussing a case in which the University of Wisconsin settled a lawsuit filed against it by UW Roman Catholic Foundation challenging UW's refusal to recognize the Foundation as a student organization.
More interesting may be the article's effort to describe what lies ahead. The article quotes Steven K. Green, a professor of law at Willamette Universiy (and former Americans United policy director) as saying that the next wave of post-Rosenberger litigation relates to schools citing their anti-discrimination policies and refusing to fund religious groups that deny gays and lesbians the right to join or be officers. The article mentions Christian Legal Society v Southern Illinois University at Carbondale as one example of this kind of litigation (see prior postings here and here). In that case, CLS sued after the University revoked CLS’s status as a recognized student group because it violated the University’s non-discrimination policy by not allowing non-Christians, gays and lesbians to be voting members. The University settled with CLS and, among other things, reinstated CLS. Another similar case, not mentioned in the article, is Christian Legal Society of University of California, Hastings College of the Law v. Kane, which is still pending (see prior postings here and here).
Howard Friedman, your regular host on this site, provided this detailed Analysis of The Christian Legal Society Cases back in May, 2005.
Thanks to ADF for the lead.
Sunday, July 08, 2007
European Court of Human Rights: No to Norway's Mandatory Religious Ed
The facts, as set out by the Court:
The present case concerns complaints lodged by non-Christian parents. It relates, firstly, to a complaint under Article 9 of the Convention and Article 2 of Protocol No. 1, about refusals by the domestic authorities to grant their children full exemption from a compulsory subject in Christianity, Religion and Philosophy (the “KRL-subject” – see paragraph 16 below) taught during the ten-year compulsory schooling in Norway. Secondly, it concerns their complaint about discrimination contrary to Article 14 of the Convention taken in conjunction with the aforementioned provisions and Article 8 of the Convention. (Para 3 of the opinion).
[N]otwithstanding the many laudable legislative purposes stated in connection with the introduction of the KRL subject in the ordinary primary and lower secondary schools, it does not appear that the respondent State took sufficient care that information and knowledge included in the curriculum be conveyed in an objective, critical and pluralistic manner for the purposes of Article 2 of Protocol No. 1. Accordingly, the Court finds that the refusal to grant the applicant parents full exemption from the KRL subject for their children gave rise to a violation of Article 2 of Protocol No. 1. (Para 102 of the opinion).
There was a dissent, which argued:
In our opinion, a review of the case requires a twofold approach, namely, in the light of the requirements of modern Norwegian society and with its history as an important background. On the one hand, the increasing number of Norwegian citizens with different ethnicities and religious beliefs calls for inclusive measures, with a common education in religions and ethics in schools. On the other hand, when devising the curriculum, one cannot overlook the many centuries of Norwegian history. Christianity has a very long tradition in Norway, both as a religion and a school subject (see paragraphs 9 and 10 of the judgment). This aspect must be reflected in the curriculum, which must at the same time be inclusive and broad.
[Thanks to Christianity Today for the lead.]
Malaysia: Muslim to Hindu Conversion Blocked by Islamic Court; Woman Detained
Revathi claims she was subject to "intimidation and mental torture" while in the center. She claims she was placed in solitary confinement, forced to wear a headscarf, pray as a Muslim, and was served beef (which Hindus may not eat). AP reports that Islamic officials also seized the couple's 18-month-old daughter in March and placed her in Revathi's Muslim mother's care. According to the BBC, a lawyer representing the Malacca Islamic Religion Council rejected her allegations and said officials believe that she can still be persuaded to embrace Islam.
In a widely publicized case, in May a woman, Lina Joy, lost a battle in Malaysia's highest court to have the word "Islam" removed from her identity card. She had sought to convert from Islam to Christianity.
Previous posts relating to Lina Joy and Malaysia's treatment of converts can be found here.
Saturday, July 07, 2007
Members of Congress Call on Bishops to Work to End War in Iraq
Guest editor's note: I couldn't find a Republican (or other) response or critique of the letter to the USCCB. If any reader knows of one, please post a link in the comments section.
American Baptist Churches and Cooperative Baptist Fellowship Hold Historic Worship Service
The American Baptist Churches' also presented its first Religious Freedom Award to the Baptist Joint Committee for Religious Liberty.
Lead from Blog From the Capital.
Friday, July 06, 2007
ADF Sues City of Zachary, LA Over Prohibited Preaching
According to ADF, on the evening of Nov. 18, John Todd Netherland stood outside on public property to speak about his Christian faith about 75-100 feet from the entrance of a local bar. Even though he was allegedly standing on public property, a police officer told Netherland he could not preach there and instructed him to move closer to the street. The officer then allegedly warned Netherland that if he stepped back to the place he’d been standing, he’d be arrested and sent to jail. Despite agreeing to comply, the Plaintiff claims that the officer told him that if he continued to preach, even in the new location, he would arrest him for “disturbing the peace.” Netherland claims that he then ceased speaking because of the threat of arrest.
New Faith-Based Initiative in Granite State
Developments in Odessa, TX Bible Case
Times (UK) Attacks Regent University Law School/Justice Department Relationship
Thursday, July 05, 2007
Defendant's Religious Beliefs Fair Game in Employment Case
Defendant argued that his individual associational privacy rights under the First and Fourteenth Amendments and his individual beliefs and freedom of exercise of religion under the religion clauses of the US and NY Constitutions are absolute, and that no compelling state interest exists so as to compel him to divulge those beliefs. Disagreeing, the judge concluded:
Without ruling whether any answer given would be admissible at trial, the judge has required the defendant to answer the following questions:It is the duty of every Court to guard jealously the great right and privilege of free exercise and enjoyment of religious profession and worship without discrimination or preference, with all the power that the Court possesses, but no person should be permitted to use that right as a cloak for acts of discrimination or as a justification of practices inconsistent with the protections against invidious discrimination proscribed in New York State law.
“State whether defendant [] believes that ‘homosexuality is a sin against God.'"
“State whether defendant [] believes that ‘gays and lesbians are doomed to eternal damnation."
“State whether defendant [] regards homosexuals as ‘repulsive.'”
The case is Fairchild v. Riva Jewelry Mfg., Inc., No. 101169/2006, 2007 NY Slip Op 31857 (June 28, 2007).
Leonard Link also has an analysis of this case.
Elections at U.S. Commission on International Religious Freedom
The Reverend Richard Land, who heads the Southern Baptist Convention's Ethics and Religious Liberty Commission, and Preeta Bansal , a partner at Skadden, Arps, Slate, Meagher & Flom LLP, were elected to serve as vice-chairs.
According to the Commission, the U.S. Commission on International Religious Freedom was created by the International Religious Freedom Act of 1998 to monitor the status of freedom of thought, conscience, and religion or belief abroad, as defined in the Universal Declaration of Human Rights and related international instruments, and to give independent policy recommendations to the President, Secretary of State, and Congress.
Student Dress Code Falls in Napa
The suit was brought by six students who were punished for violating the attire policy, including one who wore a t-shirt that said "Jesus Freak," another who wore a D.A.R.E. pin, and a third who wore a breast cancer awareness ribbon. The district also punished a student wearing a pair of socks bearing the image of the Winnie the Pooh character Tigger. The district defended the policy, saying that it furthers the important governmental interests of providing a safe school environment and of preventing gang activity on campus.
This case is an early post-Morse v. Frederick (551 U.S. __ (June 25, 2007)) decision. In its reaching his decision, Napa Superior Court Judge Raymond Guadagni cited Morse as upholding the well-settled principle from Tinker v. Des Moines Independent Community School Dist that student expression is protected as long as it does not “materially and substantially disrupt the work and discipline of the school.” 393 U.S. 503, 513 (1969).
Wednesday, July 04, 2007
Maryland State Bd. of Ed. Approves Sex-Ed Curriculum Over Religious Objections
In the June 27 ruling, the State Board of Education's opinion, found here, dismissed the opponents' claims, concluding that the Free Exercise challenge does not succeed because "a curriculum need not espouse every viewpoint to pass constitutional muster" and that the curriculum in question does not "preclude the Appellants from espousing their religious beliefs..." The Board rejected the opponents' Establishment Clause claims, saying the the curriculum has a secular purpose, which is fostering tolerance and diversity. In rejecting the Free Speech claim, the Board concluded that the Constitution does not require the district to be viewpoint neutral or include all points of view.
The Post says that the opposition group has not yet determined whether it will seek relief in federal court.
Gordon Brown Gives Up Right to Appoint Senior Ecclesiastical Positions
Guest Blogger Steve Sheinberg To Host Religion Clause For The Next Week
Tuesday, July 03, 2007
2nd Circuit Vacates Injunction Permitting Renting Of School Buildings For Church Services
Judge Calabresi would hold that this dispute is ripe for adjudication and would vacate the injunction because he concludes that Revised SOP §5.11, while a restriction on the content of speech permitted on school property, is viewpoint-neutral. Judge Walker agrees that the dispute is ripe for adjudication but would affirm the injunction because he concludes that Revised SOP § 5.11 is viewpoint-discriminatory. Judge Leval expresses no opinion on the merits, but votes to vacate the injunction because he concludes that the dispute is not ripe for adjudication.Today's New York Sun reports on the case. [Thanks to How Appealing for the lead.]
Our disparate views of this case leave us without a rationale to which a majority of the court agrees. While two judges who disagree on the merits believe the dispute is ripe for adjudication, the court cannot decide the merits of the case without the vote of the third judge, who disagrees as to ripeness. Judge Leval agrees that the dispute over Revised SOP §5.11 would indisputably become ripe if the City were to deny Bronx Household permission to use school facilities in reliance on the terms of that rule.
... The City is free to adopt Revised SOP § 5.11 (if it has not already done so), and then require that Bronx Household apply to use school buildings pursuant to that rule. In the event Bronx Household does so, and the City denies the application, Bronx Household may seek review of that denial in the district court on an expedited basis.
Itinerant Preacher Loses Bid To Preach On Murray State Campus
Australia May Pay Racecourse To Host Mass By Pope
Egyptian High Court Will Review Converts' Right To Change ID Card Designation
Fargo Reverses Decision-- Will Keep 10 Commandments On City Mall
Tajikistan's Religion Law Draft Raises Concerns
"Day of Truth" Lawsuit Settled As School Enacts New Speech Policy
Monday, July 02, 2007
Supreme Court Remands Notre Dame Case In Light of Hein Decision
Accommodating Muslim Prayer In San Diego School Raises Controversy
State Can Apply Child Care Licensing To Bible School
South Carolina House Upholds Veto Of Blue Law Repeal
Pentacle To Go On Arlington Cemetery Headstone With Cross
More of June's Prisoner Free Exercise Cases
In Watts v. Department of Corrections, 2007 U.S. Dist. LEXIS 45812 (ED CA, June 15, 2007), a California federal district court awarded limited attorneys fees to counsel who was partially successful in a prisoner's challenge to prison grooming standards by negotiating a settlement that expunged the prisoner's disciplinary record regarding grooming violations.
In Key v. Keim, 2007 U.S. Dist. LEXIS 46101 (SD IL, June 26, 2007), a federal district court accepted a federal magistrate's recommendation that summary judgment be denied to a prison chaplain who was sued by a prisoner who was a member of the African Hebrew Israelite faith. The prisoner claimed that his free exercise rights were violated when he was denied kosher meals several times and was denied access to certain religious tapes.
Sunday, July 01, 2007
Bar Exam Question Challenged On Free Exercise Grounds
UPDATE: Here is the full text of the complaint in Dunne v. Massachusetts Board of Bar Examiners. [Thanks to Dispatches From the Culture Wars for posting it.]
City Officials Defiant Over Jesus Picture In Courthouse
UPDATE: The Times-Picayune reports that on Tuesday, the ACLU filed suit against the Slidell City Court challenging the constitutionality of displaying the icon reproduction in the courthouse lobby.
Texas Supreme Court Rejects Professional Negligence Suit Against Pastor
California Court Restrains Radical From Going Near Mosque
Alabama Governor Proclaims "Days of Prayer for Rain"
Court OK's School's Ending Of Mohawk Thanksgiving Address Over PA System
This week's New York Law Journal reports on the decision, pointing out that two-thirds of the school district's students are American Indians and that the recitation of the Address was originally an attempt to raise awareness among non-Indian students of Mohawk culture.
Iowa Permits Faith-Based Prison Program To Continue Pending 8th Circuit Decision
Saturday, June 30, 2007
Recent Articles of Interest
Cass R. Sunstein, On the Tension Between Sex Equality and Religious Freedom, (June 2007, U. of Chicago, Public Law Working Paper No. 167).
Ira C. Lupu & Robert W Tuttle, Instruments of Accommodation: The Military Chaplaincy and the Constitution, (West Virginia Law Review, Vol. 110, 2007).
Joshua D. Dunlap, When Big Brother Plays God: The Religion Clauses, Title VII, and the Ministerial Exception, (82 Notre Dame Law Review 2005 (2007)).
From Bepress:
Patrick McKinley Brennan, The Decreasing Ontological Density of the State in Catholic Social Doctrine, (Villinova Univ. Working Paper Series, 2007).
From SmartCILP:
Tom Lewis, What Not To Wear: Religious Rights, the European Court, and the Margin of Appreciation, 56 International & Comparative Law Quarterly 395-414 (2007).
David Morris Phillips, The Unexplored Option: Jewish Settlements in a Palestinian State, 25 Penn State International Law Review 75-205 (2006).
Reuven (Ruvi) Ziegler, The French "Headscarves Ban": Intolerance or Necessity?, 40 John Marshall Law Review 235-266 (2006).
Colloquium: Religion and Immigration. Articles by Amelia J. Uelmen, Michael Scaperlands, Stephen H. Legomsky, Elizabeth McCormick, Patrick McCormick, Marta Vides Saade, Kathryn A. Lee and Michael J. Churgin. 83 University of Detroit Mercy Law Review 829-953 (2006).
Symposium: Law and Religion. McElroy Lecture by Cass R. Sunstein; articles by Deniz Coskun, Peter Cumper, Peter Edge, Silvio Ferrari, Charles I. Lugosi, Asher Maoz, Kurt Martens, Renata Uitz and Howard J. Vogel. 83 University of Detroit Mercy Law Review 567-827 (2006).
Friday, June 29, 2007
Businessman Challenges Indonesia's Limits On Polygamy
9th Circuit Decides Burden of Proof In Reverse Religious Discrimination Case
Georgia Officials Exclude Muslim Woman Wearing Hijab From Courtroom
Two Plaintiffs Lose Religious Discrimination Suits
In Nuha Saabiraah El v. City of New York, 2007 U.S. Dist. LEXIS 46443 (SDNY, June 26, 2007), a New York federal district court dismissed on res judicata grounds a claim by a fired employee of the New York Department of Corrections. Plaintiff claimed that her dismissal violated her 1st and 14th Amendment and her statutory rights because the Department of Corrections, in disciplining her, was motivated by the fact that she was associated with the Moorish-American faith-- a group that DOC thought posed security concerns.
Michigan Supreme Court Rejects Church's RLUIPA Claim
We conclude that a refusal to rezone does not constitute an "individualized assessment," and, thus, that RLUIPA is inapplicable. Further, even if RLUIPA is applicable, the building of an apartment complex does not constitute a "religious exercise," and even if it does constitute a "religious exercise," the city of Jackson’s refusal to rezone plaintiff's property did not substantially burden plaintiff's religious exercise, and even if it did substantially burden plaintiff's religious exercise, the imposition of that burden is in furtherance of a compelling governmental interest and constitutes the least restrictive means of furthering that interest.Two justices wrote concurring opinions urging reversal on narrower grounds. Yesterday's Jackson Citizen Patriot reported on the decision. [Thanks to Brian D. Wassom for the lead.]
City Amends Noise Ordinance and Settles Preacher's Challenge to Restrictions
British Sources Say Tony Blair Will Convert To Cathoicism
Moldova's President Rejects Parliament's Law On Religious Groups
Fired University Chaplain Now Asserts A Title IX Discrimination Claim
Thursday, June 28, 2007
President Helps Rededicate DC's Islamic Center
The greatest challenge facing people of conscience is to help the forces of moderation win the great struggle against extremism that is now playing out across the broader Middle East. We've seen the expansion of the concept of religious freedom and individual rights in every region of the world -- except one. In the Middle East, we have seen instead the rise of a group of extremists who seek to use religion as a path to power and a means of domination.The President also announced that, for the first time, he would appoint a special envoy to the Organization of the Islamic Conference as part of the country's efforts to reach out to Muslim communities around the world. A White House "Fact Sheet" emphasized the opportunity that exists to help forces of moderation oppose radicals who purport to act in the name of Islam.
British Schools Face Problems In Attempt To Serve Halal Lunches
Judge Refuses To Keep Media Out of Imams' Civil Rights Trial
New Abuse Charges Against Saudi Arabia's Commission for Prevention of Vice
School Board Debates Religious Released Time Program
British Judges Reach Out To Muslim Community
Wednesday, June 27, 2007
Church-State Conflict Over Jesus Picture In Courthouse Continues
German Pastor Convicted Under Holocaust Denial Ban For Abortion Comments-- UPDATE: Story Retracted
UPDATE: In an unusual move, Life Site News on Thursday issued the following statement:
The LifeSiteNews.com story published Tuesday on the jailing of Pastor Lerle in Germany has been retracted after LifeSiteNews.com was informed that we were working with false information from trusted news sources. While Pastor Lerle has in the past been jailed for anti-abortion activities his current one year imprisonment stemmed solely from charges of holocaust denial and not from comparing abortion to the Nazi Holocaust as we erroneously reported Tuesday.[Thanks to Patrick Gallagher for the update lead.]
California Court Upholds Episcopal Church's Right To Property of Dissident Parish
The court also rejected arguments by St. James Parish that its free speech and free exercise rights were being violated. The court said that the lawsuit: "is a property dispute -- basically over who controls a particular church building in Newport Beach -- and does not arise out of some desire on the part of the general church to litigate the free exercise rights of the local congregation. They are free to disaffiliate just so long as they do not try to take the parish property with them."
Reporting on the decision, yesterday's Orange County Register points out that at issue was the decision of St. James Parish to split off from the Episcopal Church in a dispute over scriptural doctrine and homosexuality. The Court of Appeals emphasized, however, that the reason for the parish's decision to break away was irrelevant to its decision.
UPDATE: In an unpublished opinion filed the same day, the court relied on its analysis relating to St. James Parish to reach the same result as to two other breakaway parishes-- All Saints in Long Beach, and St. David's in North Hollywood. Episcopal Church Cases II, (CA Ct. App., June 25, 2007). [Thanks to Jeffrey Hassler, via Religionlaw listserv for the lead.]
New Jersey Officials Say Sign On Supposed Monestary Violates Zoning Rules
Turkey's Supreme Court Says Patriarch Should Not Use Title "Ecumenical"
Mennonite Farmer Excused From ID Number Mandate In Settlement of Lawsuit
Employment Discrimination Suits Proliferate Recently
In suburban Minneapolis, Minnesota, Chris Lind, employed by Prior Lake High School as a hallway and parking lot supervisor claims that his firing violated his religious freedom by firing him for talking with students about their sexual orientation, including the Biblical view of homosexuality. The school board says that Lind was disciplined for failing to separate his role as supervisor from that of friend of students. Lind has threatened to sue. (Minneapolis Star Tribune).
Finally, in Springfield, Missouri, pharmacist Todd Campbell has filed suit against Nitelines USA and Fort Leonard Wood after he was fired from his job as a hospital pharmacist for refusing to provide proof that he had been vaccinated. Campbell argues that he is exempt from vaccination requirements because of his religion, which he says is "Hebrew". (AP)
Tuesday, June 26, 2007
Germany Excludes Scientologist Tom Cruise's Moviemakers From Military Bases
Hindu Chaplain To Deliver Invocation In U.S. Senate
Poway High School T-Shirt Case Gets More Procedurally Complex
Monday, June 25, 2007
Supreme Court Upholds Student Speech Restrictions On Narrow Grounds
Justice Thomas' concurring opinion argued that the Tinker case-- the basis for protection of the speech rights of school students-- should be overruled. Justices Alito and Kennedy joined the majority opinion "on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as 'the wisdom of the war on drugs or of legalizing marijuana for medicinal use.'"
Justice Breyer argued that the Court should not have gotten to the merits, but should have merely held that defendants' had qualified immunity from plaintiff's claim for monetary damages. CNN among others reports on today's decision.
Justice Stevens dissented, joined by Justices Souter and Ginsburg. Stevens wrote: "I agree with the Court that the principal should not beheld liable for pulling down Frederick’s banner.... I would hold, however, that the school’s interest in protecting its students from exposure to speech 'reasonably regarded as promoting illegal drug use,' ... cannot justify disciplining Frederick for his attempt to make an ambiguous statement to a television audience simply because it contained an oblique reference to drugs."
The narrow grounds on which the Court decided the case is unlikely to make it a case which has substantial implications for student religious speech-- a concern that some had expressed as the case was pending.
US Supreme Court Holds Taxpayers Lack Standing To Challenge White House Faith-Based Initiative Expenditures
The plurality opinion was written by Justice Alito, who was joined by Chief Justice Roberts and Justice Kennedy. Here are excerpts from the Court's syllabus of that opinion:
The link between congressional action and constitutional violation that supported taxpayer standing in Flast is missing here. Respondents neither challenge any specific congressional action or appropriation nor ask the Court to invalidate any congressional enactment or legislatively created program as unconstitutional. That is because the expenditures at issue were not made pursuant to any Act of Congress, but under general appropriations to the Executive Branch to fund day-to-day activities. These appropriations did not expressly authorize, direct, or even mention the expenditures in question, which resulted from executive discretion, not congressional action. The Court has never found taxpayer standing under such circumstances....Justice Kennedy also wrote a separate concurrence in which he said: "It must be remembered that, even where parties have no standing to sue, members of the Legislative and Executive Branches are not excused from making constitutional determinations in the regular course of their duties. Government officials must make a conscious decision to obey the Constitution whether or not their acts can be challenged in a court of law and then must conform their actions to these principled determinations."
Respondents argue to no avail that distinguishing between money spent pursuant to congressional mandate and expenditures made in the course of executive discretion is arbitrary because the injury to taxpayers in both situations is the same as that targeted by the Establishment Clause and Flast-- the expenditure for the support of religion of funds exacted from taxpayers. But Flast focused on congressional action, and the invitation to extend its holding to encompass discretionary Executive Branch expenditures must be declined....
Taking the Circuit’s zero-marginal-cost test literally-- i.e., that any marginal cost greater than zero suffices-- taxpayers might well have standing to challenge some (and perhaps many) speeches by Government officials. At a minimum, that approach would create difficult and uncomfortable line-drawing problems.
Justice Scalia, joined by Justice Thomas, concurred. Here are excerpts from the syllabus of that concurrence:
A taxpayer’s purely psychological disapproval that his funds are being spent in an allegedly unlawful manner is never sufficiently concrete and particularized to support Article III standing.... Although overruling precedents is a serious undertaking, stare decisis should not prevent the Court from doing so here. Flast was inconsistent with the cases that came before it and undervalued the separation-of-powers function of standing. Its lack of a logical theoretical underpinning has rendered the Court’s taxpayer-standing doctrine so incomprehensible that appellate judges do not know what to make of it. The case has engendered no reliance interests. Few cases less warrant stare decisis effect. It is past time to overturn Flast.Justice Souter wrote a dissent in which Justices Stevens, Ginsburg and Breyer joined. They said, in part:
Here, the controlling, plurality opinion declares that Flast does not apply, but a search of that opinion for a suggestion that these taxpayers have any less stake in the outcome than the taxpayers in Flast will come up empty: the plurality makes no such finding, nor could it. Instead, the controlling opinion closes the door on these taxpayers because the Executive Branch, and not the Legislative Branch, caused their injury. I see no basis for this distinction in either logic or precedent....
Religious Leaders In NY Gay Pride Parade Criticize Mayor
Australian Hate Speech Case Settled
Employees of Israel's Conversion Authority Threaten To Strike
New Articles and Book of Interest
Daniel O. Conkle, The Establishment Clause and Religious Expression in Governmental Settings: Four Variables in Search of a Standard , (West Virginia Law Review, Vol. 110, No. 1, 2007).
From SmartCILP:
Richard L. Kaplan, Honoring Our Parents: Applying the Biblical Imperative In the Context of Long-Term Care, 21 Notre Dame Journal of Law, Ethics & Public Policy 493-515 (2007).
Kenneth L. Marcus, Anti-Zionism as Racism: Campus Anti-Semitism and the Civil Rights Act of 1964, 15 William & Mary Bill of Rights Journal 837-891 (2007).
Selected Papers from the Terrence J. Murphy Institute Conference. Public Policy, Prudential Judgment and the Catholic Social Tradition. Articles by Charles M. A. Clark, R. Mary Hayden Lemmons, Robert K. Vischer and Andrew Yuengert. 4 University of St. Thomas Law Journal 1-86 (2006).
New Book:
Peter Irons, God on Trial: Dispatches from America's Religious Battlefields (Viking, May 2007), reviewed by AP.